Retired Constitutional Court Justice Yvonne Mokgoro has dealt what is certainly the final blow to the prosecuting careers of advocates Nomgcobo Jiba and Lawrence Mrwebi – finding that the pair is neither fit nor proper to hold their respective offices within the National Prosecuting Authority (NPA).

In a scathing 140-page report Mokgoro recommends that President Cyril Ramaphosa remove Jiba from office as Deputy National Director of Public Prosecutions, as well as Mrwebi from office as Special Director of Public Prosecutions.

Ramaphosa has not announced his decision but asked Jiba and Mrwebi earlier in April to make representations they may have in response to Mokgoro’s report.

Compromised integrity; lack of leadership; dishonesty; and a failure to maintain high standard of professional ethics, accountability and transparency are among the key findings against the pair – who still face a fight in the Constitutional Court against an application by the General Council of the Bar (GCB) to strike them off the roll of advocates. The GCB is relying on the same adverse court findings that Mokgoro relied on to reach her decision.

“Jiba and Mrwebi have been involved in litigation in both their personal and official capacities over the years,” said Mokgoro in the report. “They have, however, failed to introspect and reflect on the issues which have beset the NPA with their involvement, as reflected in this report.”

The cases considered involve litigation related Jiba and Mrwebi’s handling of the prosecution of former head of police Crime Intelligence Richard Mdluli; Jiba’s decision to authorise racketeering charges against former KwaZulu-Natal Hawks head Johan Booysen; and the GCB’s striking-off application.

In relation to Jiba’s conduct in the litigation in the Booysen matter, Mokgoro found it was “misleading and in following that approach, she compromised her integrity and consequently cannot be entrusted with the responsibilities of the office that she holds”.

“In addition, and as will be canvassed in the findings below, her conduct in multiple instances indicates a lack of conscientiousness. Her actions do not accord with the requirements set out under section 9(1) of the NPA Act,” it states in the report.

‘IRREVERENCE TO THE COURTS AND INDIFFERENCE TO THEIR PROCESSES’

Mokgoro goes further to find that Jiba’s conduct in the Booysen prosecution “the evidence establishes that she allowed, and in fact enabled, the independence of the NPA to be compromised”.

It was established that the advocate also allowed pressure to influence the manner in which the NPA dealt with the matter.

Ramaphosa tasked the commission with establishing whether deputy prosecutions boss duly respected court processes and proceedings as required by a senior member of the NPA. It found she failed to comply with court processes within the stipulated timeframes; failed to take the court into her confidence; and was described as supine for failing to act in instances when she was expected to do so.

“We find that as a senior member of the NPA, Jiba has displayed irreverence to the courts and indifference to their processes, resulting in adverse comments being made about her,” the commission found.

Jiba’s conduct was also found wanting in respect of some of the basic principles expected of prosecutors, as set out in the NPA’s prosecution policy.

“The policy obliges all its members to serve impartially and to exercise, carry out and perform their powers, duties and functions in good faith and without fear, favour or prejudice and subject only to the Constitution and the law.”

“In compromising the independence of the NPA, we find that Jiba dishonoured this obligation,” found Mokgoro, adding that Jiba’s conduct had the effect of seriously damaging public confidence in the NPA.

In concluding the findings against Jiba and whether she displayed the required competence and capacity required to fulfill her duties, Mokgoro found:

Jiba failed to attend to review as requested, the decision taken by Mrwebi to withdraw the charges against Mdluli;

She failed to competently apply the prescripts of POCA, the NPA prosecution policies and the law in the Booysen prosecution;

Once she had initiated the process, she failed to manage the dispute between the prosecutor whose jurisdiction the matter fell and another prosecutor on a critical procedural aspect, relating to the indictment; and

Jiba also failed to competently and timeously comply with court orders, time frames and directives as set by the courts.

The report concludes: “Having regard to the above, Jiba failed to display the required competence and capacity required to fulfill her duties.”

‘CONTRADICTORY VERSIONS’

On Mrwebi and his conduct in litigation, the commission found his conduct was openly at variance with what is expected of a person in his position, and taking the decision to withdraw the prosecution of Mdluli without consulting with the relevant Director of Public Prosecutions, Mrwebi acted contrary to the provisions of the NPA Act.

“Mrwebi did not act with integrity as required under section 9 of the NPA Act… This is evident in his attempt to justify his conduct where he inadvertently referred to a judgment which directly established his dishonesty under oath.”

One of the main criticisms of Mrwebi has been his understanding and interpretation of the term “in consultation”. As required by legislation, the term means that when two prosecutors discuss a matter they must have agreed on the way forward – it cannot be a unilateral decision, as Mrwebi’s was when he decided to withdraw the case against Mdluli.

Mrwebi was also criticized for accepting and acting on representations from Mdluli’s legal team, and informing Mdluli’s legal team of the decision to withdraw the case before informing the DPP.

“Mrwebi gave contradictory versions when seeking to explain what was meant by the phrase “in consultation with”, Mrwebi showed himself to lack an understanding of the law and the legal process.

“Furthermore, Mrwebi’s lack of appreciation regarding his behaviour in keeping secret the representations from criminal suspects implicated in the investigation carried out by the NPA into alleged improprieties perpetrated by officials of Crime Intelligence and his admission that he took those representations into account without verifying the truthfulness of their contents, confirms that his decision to withdraw the prosecution of Mdluli was irrational and unlawful,” the report found.

“Mrwebi’s conduct in withdrawing the prosecution of Mdluli when there was a prima facie case and his flawed reasoning for withdrawing that prosecution were inconsistent with the provisions of the Prosecution Policy Directives.

“The Policy Directives require that extensive police investigations be shown to have been carried out before a prosecution is withdrawn on the ground that there is no reasonable prospect of a successful prosecution. As established by the evidence, Mrwebi cared little about the merits of the Mdluli case or whether a successful prosecution was reasonably possible, he simply decided that the matter fell within the jurisdiction of the IG and that it should be withdrawn and given to the IG,” the report states.

The report concludes by questioning whether Mrwebi’s conduct brought the NPA into disrepute.

Mrwebi’s decisions taken in his capacity as Special Director of Public Prosecutions, which was set aside on review, the comments and criticisms levelled against him by the courts have brought the NPA into disrepute;

The lie he told under oath in the Ledwaba matter, which he further perpetuated before this enquiry, all point to Mrwebi bringing the NPA into disrepute;

By sending a letter to Mdluli’s representatives prematurely and without any basis, he brought the NPA into disrepute; and

The manner in which he withdrew the Mdluli charges and his representations to the Courts in relation thereto drew severe judicial criticism. So severe were the findings that he has been found guilty of misconduct.

Mokgoro concludes her report by urging the President to never allow a situation like this to happen again.

“Where officials are mired in controversy and are consistently being taken on review for irrational decision-making, and being found wanting by the Courts, it damages the public confidence.

“The NPA must instill a strong sense of constitutional values and belief in the rule of law. When these values are internalised and fought for vociferously from within the NPA, only then will the institution enjoy the confidence of the citizenry and become the prosecuting authority that South Africans deserve,” said Mokgoro.